组织、领导、参加恐怖组织罪中罪数规定的新诠释

A Novel Interpretation of the Provisions on Multiple Offenses in the Crime of Organizing,Leading,and Participating in Terrorist Organizations

恐怖犯罪是我国当前社会的新疾患。我国《刑法》第一百二十条第二款规定,犯组织、领导、参加恐怖组织罪并实施杀人、爆炸、绑架“等犯罪”的,按数罪并罚的规定处罚,其中“等犯罪”的具体范围并不明确。多数学说倾向于对组织、领导、参加恐怖组织后实施的一切犯罪都实行并罚,但这种做法可能形成重复评价,还可能造成不协调的结果。少数学说主张以行为人在恐怖组织中发挥的作用或者后续犯罪是否属于恐怖犯罪作为区分并罚与否的标准,但在某些场合无法得出妥当的结论。应根据前后犯罪的法益关系以及行为数量决定是否实行并罚。法益侵害不超过抽象的公共危险的后续犯罪,以及与组织、领导、参加恐怖组织的行为重合的后续犯罪,不属于应当并罚的“等犯罪”。

Terrorism-related crimes have become a new affliction in our current society.Article 120(2)of the Criminal Law stipulates that those who commit the crime of organizing,leading,or participating in a terrorist organization and carry out crimes such as murder,explosions,kidnappings,etc.,shall be punished according to the principle of cumulative punishment for multiple offenses.However,the scope of subsequent crimes is not clear.Most viewpoints tend to apply cumulative punishment to all crimes committed after organizing,leading,or participating in a terrorist organization.However,this approach may lead to repetitive evaluations and result in inconsistencies.A minority viewpoint suggests using the role played by the individual in the terrorist organization or whether the subsequent crimes constitute terrorism as criteria to differentiate whether cumulative punishment should be applied.However,in certain situations,it may not lead to appropriate conclusions.The decision to apply cumulative punishment should be based on the relationship of legal interests between the prior and subsequent crimes,as well as the number of acts.If the legal interests in subsequent crimes do not exceed the abstract public danger caused by the initial offense,as well as subsequent crimes coincide with the acts of organizing,leading,or participating in a terrorist organization,then those crimes should not be imposed with cumulative punishment.